The Departure from Isolationism:A Legal Analysis of FDR's Role in Coaxing the U.S. into
WWII

Between the beginning of WWII in Europe and Japanís
bombing of Peal Harbor there were a number of significant policy changes
which marked the U.S.ís break from its strictly isolationist stance and
incrementally paved the way for its eventual entry into the war on the
side of the Allies. As it became increasingly clear that the Allies
would not survive the tide of fascism without substantial U.S. aid, there
ensued a national and international campaign, both political and legal,
to free the U.S. from its neutrality legislation so that it might provide
the necessary material aid to the Allies before it was too late.
However, the legal and political obstacles which had to be overcome (or
skirted) in that campaign were, to say the least, significant. The
task of finding a way of aiding the Allies despite national and international
law, a strongly isolationist Congress, and a genuine belief that the U.S.
had to avoid entry into the war at all costs fell largely to the president,
Franklin D. Roosevelt. In driving the country inevitably towards
war, despite the express will of the Congress and the people, FDR pushed
and occasionally crossed the bounds of national and international law.
This paper focuses on the legal basis for these transgressions.

While the bulk of this web project, especially the
timelines
and the summary of major U.S. policy changes,
addresses the entirety of the period from 1939 to 1941, this paper focuses
on the change in the U.S.ís status from neutrality to non-belligerency,
roughly between September of 1939 and September of 1940. More specifically,
the paper will focus on the Presidentís role in the repeal of the arms
embargo (with the passage of the Neutrality Act of 1939) and the secret
negotiation of the Destroyers for Bases Deal in late 1940.

At the outbreak of the war in Europe, U.S. public
opinion was fairly uniformly horrified by the Nazi aggression and supportive
of the Allies, yet remained determined that everything possible should
be done to stay out of the war.[fn.1] This
sentiment, shared by a strong isolationist element in Congress, had been
codified in two pieces of federal legislation. Title V of the 1917
Espionage Act, entitled "Enforcement of Neutrality," stated that:

SEC. 3. During a war in which the United States is a neutral
nation, it shall be unlawful to send out of the jurisdiction of the United
States any vessel built, armed, or equipped as a vessel of war, or converted
from a private vessel into a vessel of war, with any intent or under any
agreement or contract, written or oral, that such vessel shall be delivered
to a belligerent nation, or to an agent, officer, or citizen of such nation,
or with reasonable cause to believe that the said vessel shall or will
be employed in the service of any such belligerent nation after its departure
from the jurisdiction of the United States. [fn.2]

As one commentator points out, the lack of any grammatical subject
in Section 3 prohibits the transfer of vessels to belligerents by "anybody
or anything," including the president, private parties, or even Congress.
[fn.3]

Secondly, the Neutrality Act of 1937, [fn.4]
the successor to yearly neutrality legislation from 1934 to 1936 and the
strongest yet, sought to legislate neutrality in a number of ways.
[fn.5] Section 1 required the President to determine
when a state of war existed and then made it unlawful "to export, or attempt
to export, or cause to be exported, arms, ammunition, or implements of
war from any place in the United States to any belligerent state."
The 1937 Act also forbade loans and security sales to belligerents, subject
to the Presidentís power to make certain exceptions; it forbade the use
of American ports and territorial waters by belligerent submarines or armed
merchant vessels where the President has deemed such use threatening to
American peace; it forbade American ships from transporting arms of any
state to a belligerent; it forbade American citizens from traveling on
the vessels of belligerents; and it forbade American merchant vessels engaging
in trade with belligerents to arm themselves.

Despite these crystal clear bans on military
aid to belligerents, FDR became increasingly convinced that the best way
to keep the U.S. out of war and protect the national interest, while at
the same time remaining neutral, was not to isolate the U.S. from world
affairs and merely hope for the best, but to supply the Allies with enough
material aid that they would be able to win the war in Europe and thus
prevent it from eventually reaching the Americas. The battle lines
were thus drawn and turned largely on competing conceptions of what would
best serve the national interest by keeping the U.S. out of war.
At the risk of oversimplifying, while both camps were determined to keep
the U.S. out of the war, FDR was convinced that he only way to do so was
by ensuring that the Allies won. As early as September 8, the U.S.
Ambassador to France wrote to the President to state that "ëevery Frenchman
who is in a position to know the factsí was convinced that if the embargo
provisions [of the 1937 Neutrality Act] were not eliminated, ëGerman victory
would be certain.í" [fn.6] FDR first thought to
turn to Congress in order to seek a repeal, or a favorable revision, of
the Neutrality Act. Yet, upon meeting stiff resistance, it became
evident that FDR was prepared to provide the necessary aid by any means
necessary. Indeed, two months earlier he had addressed the question
to the Attorney General: "If we fail to get any Neutrality Bill, how far
do you think I can go in ignoring the existing act--even if I did sign
it?" [fn.7]

On September 21, 1939 FDR asked Congress for
a repeal of the arms embargo
provision of the Neutrality Act, which he in fact received on November
4. His reasoning, however, is remarkable for its apparent disingenuousness
more than anything. FDR was apparently convinced that the Neutrality
Act was grievously mislabeled as it "in every case puts us on the side
of the offenders." [fn.8] In his appeal to
Congress, he urged for repeal of the arms embargo and a return to the traditional
precepts of international law, which he characterized as allowing unrestricted
sale of all materials to belligerents. He argued that it was
"wholly inconsistent with ancient precepts of the law of nations" to distinguish
between a sheet of aluminum and an airplane wing as items which may be
sold to belligerents. Furthermore, he argued that the law in fact
discriminated against traditional sea powers, who had previously relied
on their right to buy anything anywhere, to the advantage of land powers
(read: England v. Germany). Thus, he concluded, a repeal of the embargo
would merely constitute a return to the international law of neutrals.

It is difficult to imagine, however, what international
law of neutrals he was referring to, if not to the Hague Conventions of
1907, to which the U.S. is a party. Article 6 of the Rights and Duties
of Neutral Powers in Naval War (Hague XIII), October 18, 1907,
clearly states that: "The supply, in any manner, directly or indirectly,
by a neutral Power to a belligerent Power, of war-ships, ammunition, or
war material of any kind whatever, is forbidden." The arms embargo
certainly captures the intent of this prohibition. In fairness, however,
by banning export, the 1937 Neutrality Act did go beyond the duties imposed
by international law. Article 7 of the same Hague Convention
states that: "A neutral Power is not bound to prevent the export or transit,
for the use of either belligerent, of arms, ammunition, or, in general,
of anything which could be of use to an army or fleet." In short,
though a neutral power may not supply arms to a belligerent, it has no
duty to prevent their export or transit.

Stranger still was the neutrality law which
resulted. In its repeal of the ban of export of war materials to
belligerents, the 1939 Neutrality Act [fn.9] did return
to traditional international law. However, seemingly determined to
compensate for any perceived lax in U.S. neutrality, Congress forbade all
U.S. ships from carrying freight or passengers to belligerent ports, it
forbade U.S. ships from arming themselves, and it enabled the President
to proclaim combat zones which U.S. ships were forbidden to enter. [fn.10]
The upshot of this, was a "cash and carry policy" which allowed trade with
belligerents only if they paid cash and freight traveled only on their
own ships. Thus, in the name of a return to the principles of international
law, the Act effectively legislated an abdication of the U.S.ís neutral
rights and a desertion of the principle of the freedom of the seas. [fn.11]
Congress was determined to keep U.S. ships and citizens out of harmís way
and thus avoid the potential for any diplomatic confrontation with Germany.
Lamentably, however, as one contemporary writer observed: "By taking our
ships off the seas the bill aided the German blockade of Britain as effectively
as if all our ships had been torpedoed." [fn.12]

The final installment of neutrality legislation
from Congress came after Senator David I. Walsh accidentally caught wind
of a proposed deal to send twenty motor torpedo boats which were currently
under construction to England. [fn.13] Walsh, the
chairman of the Senate Naval Affairs Committee, flew into a towering rage
which prompted the referral of the transaction to the Attorney General
who concluded that the deal was "absolutely illegal" as it clearly contravened
the 1917 Espionage Act. [fn.14] The deal was promptly
canceled, yet Walsh, unmollified, proceeded to amend the pending Navy Expansion
Bill with Section 14, the "Walsh Amendment." [fn.15]
In relevant part, the Walsh Amendment provided that:

(a) Notwithstanding the provision of any other law, no military
or naval weapon, ship, boat, aircraft, munitions, supplies, or equipment,
to which the United States has title . . . shall hereinafter be exchanged,
sold, or otherwise disposed of in any manner whatsoever unless the Chief
of Naval Operations in the case of naval material, and the Chief of Staff
of the Army in the case of military material, shall first certify that
such material is not essential to the defense of the United States. [fn.16]

Essentially, while preserving the ban on transfer of outfitted vessels
of war from the 1917 Espionage Act, the Walsh Amendment further required
that any military material leaving the U.S. must first be certified as
surplus and obsolete. [fn.17]

Significantly, shortly prior to the passage
of the June 28 Walsh Amendment, FDR had, while addressing the graduating
class of the University of Virginia on the eve of Italyís declaration of
war on England, initiated the what has come to be known as the "Charlottesville
Program." In his address, FDR declared that

In our American unity, we will pursue two obvious and simultaneous
courses: we will extend to the opponents of force the material resources
of this nation, and at the same time we will harness and speed up the use
of those resources in order that we ourselves in the Americas may have
equipment and training equal to the task of any emergency and every defense.
All roads leading to the accomplishment of
these objectives must be kept clear of obstructions. We will not
slow down or detour. Signals call for speed--full speed ahead. [fn.18]

It is against this backdrop, with FDR steaming full speed ahead directly
into the explicit obstacles erected by Congress, that the secret destroyer
deal unfolded.

FDR, in the wake of the Walsh Amendment
during August of 1940, was initially convinced that he could not deliver
on Churchillís request for fifty or sixty old WWI era recommissioned destroyers
without Congressional approval. [fn.19] However,
as the summer wore on and Englandís plight became critical, a cadre of
current and former advisors, with the help of Supreme Court Justice Felix
Frankfurter, managed to contrive a set of legal arguments which persuaded
FDR that he could indeed go behind Congressís back. [fn.20]
In doing so, FDR was perhaps justified in concluding that "Congress is
going to raise hell about this, but even another dayís delay may mean the
end of civilization. Cries of ëwarmongerí and ëdictatorí will fill
the air, but if Britain is to survive, we must act." [fn.21]
In the end, however, the fact that he did not lose the 1940 election or
face impeachment for his blatant evasion of the law was not in any way
based on the strength of his legal arguments.

It is telling that, in preparing the legal
opinion justifying the deal, Attorney General Jackson characterized his
role as "the attorney for the administration." [fn.22]
He noted that "I donít think [the Attorney General] should act as judge
and foreclose the Administration from making reasonable contentions;" on
a close issue he would give his client "the benefit of a reasonable doubt
as to law." [fn.23] The question, however, is whether
his contentions were even reasonable.

The crux of the legal reasoning sought to exploit
an alleged loophole in the Walsh Amendment. The opinion rested on
the contention that the spirit of the Walsh Amendment was not to prohibit
the release of military equipment unless it was useless and obsolete, but
that the requirement that material be certified as "not essential to the
defense of the United States" allowed for a transaction to be considered
in the aggregate. Thus, if the exchange of the destroyers for long-term
leases to naval bases on British holdings would improve the defense of
the U.S. as a whole, then the destroyers themselves could be certified
as non-essential. [fn.24] Ben Cohen, the original
author of the opinion which was later largely adopted by Jackson, [fn.25]
contended that "ëit would seem the most specious sort of legal argumentí
to insist that these old ships were in fact essential to the national defense,
if in fact ëthe present requirements of national defense would be best
served by their release.í" [fn.26] To hold otherwise,
he argued, would remain true to the letter of the law while subverting
its fundamental purpose. [fn.27] No amount of clever
divining of the "fundamental purpose" of the text of the Act, however,
can change the fact that it indeed was the fundamental purpose of its author
to for the letter of the law to be followed to the precisely.

The opinion disposed of the 1917 Espionage
Act by contending that the language criminalizing the export of "any vessel
built, armed, or equipped as a vessel of war, or converted from a private
vessel into a vessel of war, with any intent or under any agreement or
contract, written or oral, that such vessel shall be delivered to a belligerent
nation" [fn.28] covered only ships which were built,
armed, or equipped "with any intent or under any agreement or contract"
to deliver them to a belligerent nation. Thus, since the destroyers
were built to fly the U.S. flag and not with any intent to transfer them,
they were not covered by the Act. [fn.29] This
grammatical slight of hand, however, would not obviate the Presidentís
obligation to construe the law in concordance with the treaties to which
the U.S. was a party--most notably the Hague Convention--which makes no
distinction between old and new war materials.

To comply with international law, the destroyers
would have to first be transferred to a neutral non-U.S. holding company
in order to avoid obvious violation of Article 6 of the Hague Convention
(XIII), prohibiting the transfer of vessels from neutral powers to belligerent
powers. [fn.30] Secondly, it was arguable that
Article 6 applied at all due to the Article 28
qualification that: "The provisions of the present Convention do not apply
except between Contracting Powers, and then only if all the belligerents
are parties to the Convention." Since neither Britain or Italy had
signed the convention, the State department asserted that the U.S. was
under no obligation to comply with it in this instance. [fn.31]
Finally, it was contended by Jackson that, if all else failed, Hitlerís
repeated violations of international law justified some retaliatory, "even
at the cost of strict neutrality." [fn.32]

Even conceding these dexterous legal improvisations,
they do not cure the obvious Constitutional problem that Congress is the
sole proprietor of U.S. property and the executive is not authorized to
unilaterally dispose of it. Implicit in the same constitutional question
was whether the President is able to acquire bases from England by executive
agreement without the advise and consent of the Senate. Jackson tackled
these issues by asserting that the President, as Commander in Chief, had
not only the right but the obligation to enhance the national defense and
the "the present world conditions forbid him to make risk any delay that
is constitutionally avoidable." [fn.33] Secondly,
he turned to the Presidentís admittedly limited power to conduct foreign
relations, but contended that the power was limited primarily in instances
where the negotiations would "commit the U.S. to future action for which
congressional approval would be required." [fn.34]
In this instance, since the Destroyer for bases deal was a single exchange
without any further commitment, it was "not necessary for the Senate to
ratify an opportunity that entails no obligation." [fn.35]
The baseline of these almost-penumbral interpretations of Presidential
powers is not that they are Constitutionally justified as much as it is
born out of the normative conviction that concluding the deal was simply
the right thing to do.

In whole, the Presidential view of the legalities
of the Destroyers for Bases deal is perhaps most adequately captured by
the editorial in the Chicago Daily News which observed that:

To the average American this business of quibbling over the
fine points of international law in the face of one of historyís gravest
threats to all law is a piece of inexcusable stupidity. . . . If
Hitler crushs Britain, we can pass laws by the bucket-full, without diminishing
in any wise the threat to national security. [fn.36]

Functionally, the deal effectively spelled the end to American neutrality
and reclassified the U.S. as a non-belligerent, "the concept of non-belligerency
being defined as ëin reality only a euphemism designed to cover violations
of international law in the field of neutral obligations.í" [fn.37]
Perhaps more troublesome, is the fact that FDR ultimately justified the
exchange as a defensive act taken "in the face of grave danger." [fn.38]
As one writer notes, this maneuver constituted a watershed in the abuse
of Presidential powers. [fn.39] Since the Destroyer
Deal, it has become almost commonplace for Presidents to unilaterally commit
U.S. troops and resources in the name of combating "grave dangers" while
citing FDR as precedent. [fn.40] Though time and
custom may have lent a sense of legitimacy to this practice, neither time
nor custom can erase the fact that it has been illegitimate from its very
inception.

Id. at 219 (1952) (quoting Chit of the President, outlining
ideal on repeal, perhaps in anticipation of his address to Congress, in
longhand and undated, but presumably circa September 13, 1939 (F.D.R.:
His Personal Letters, II, 923)).

See ROBERT SHOGAN, HARD BARGAIN: HOW FDR TWISTED CHURCHILLíS
ARM, EVADED THE LAW, AND CHANGED THE ROLE OF THE AMERICAN PRESIDENCY 177-78
(1995).

20

Seegenerally, id. at 177-192.

21

LANGER & GLEASON, supra note 1, at 776.

22

SHOGAN, supra note 19, at 218.

23

Id.

24

See id. at 181.

25

Seeid. at 218.

26

Id. at 181.

27

Id.

28

Espionage Act of 1917, Ch. 20, 40 Stat. 217 (1917).

29

See SHOGAN, supra note 19, at 181-2.

30

See Rights and Duties of Neutral Powers in Naval War (Hague
XIII), art. 6, October 18, 1907 ("The supply, in any manner, directly or
indirectly, by a neutral Power to a belligerent Power, of war-ships, ammunition,
or war material of any kind whatever, is forbidden."). Note that,
in the final deal, the destroyers were not routed through a private company
but were indeed transferred directly from the United States government
to England.